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Software & Patents: "Linus Is Wrong," Says UK Lawyer

"Any talk of..a floodgate of spurious patents is nonsense," contends John Collins

John Collins, a partner at UK firm Marks and Clerk, which describes itself as "the UK's leading firm of patent and trade mark attorneys," has issued a statement in response to the public letter signed by Linus Torvalds in November 2004 which called on the EU Council to refrain from adopting its Software Patent Agreement of May 2004.

"Linus Torvalds...has recently made a statement claiming that the Directive would broaden the area in which patents would be granted. This is simply a false assumption," Collins says in the statement.

"The original [EU] proposal was solely designed to clarify and unify existing practice in the EU," explains Collins. "However, the current version - as a result of amendments made by the European Parliament - will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless."

According to Collins, Torvalds and his supporters - the letter to the EU was co-signed by Monty Widenius, the CTO of MySQL, and Rasmus Lerdorf, the original author of the PHP scripting language - lack a fundamental understanding of intellectual property rights "as they seem to be unaware that copyright can only protect software code, and not software inventions."

Allowing for patent protection on software inventions is a requirement of the World Trade Organisation's TRIPS agreement which states that patents must be available in all fields of technology, says Collins.

He continues:

"Moreover, the open source community believes that software can be entirely separated from mechanical and electronic inventions. In reality there is no neat dividing line and the Directive seeks to provide as much clarity as possible. For instance, there are many digital processing innovations which lie at the heart of technology such as digital television or MRI scanners, or where software has made improvements to existing technologies such as X-ray imaging.

Few would argue that these applications of software innovation do not qualify as a 'technical contribution' - one of the basic principles for patent protection.

It has been possible to register software patents in the UK and Europe for over 20 years and so any talk of a potential liberalization which would allow for a floodgate of spurious patents is nonsense."

The Directive, Collins adds, "was originally proposed to provide uniformity in the EU and ensure that all member states took the same approach to the patentability of software inventions so that innovators could be certain that their patents are valid throughout the EU."

Contrary to Torvalds, Widenius and Lerdorf, Collins is adamant: "We should not allow this objective to be undermined."

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Most Recent Comments
Follow the money 12/04/04 10:55:23 PM EST

Of course he wants sotware patents. He's an IP Lawyer, he wants the opportunity for lawsuits to increase.

anonimous 12/04/04 07:20:09 PM EST

Software is not music ! People who preachs for patented software are dreaming of a model (to make big money) that is not aplicable to software world. Music is a very static thing, eg: Beethoven's 5 symphony. Great, but static.

Software is a dinamic thing. Photoshop's code of today is not the same whem 10 years ago. You can not patent things like these!

What do they think ? Today they patent software, tomorrow they will go to patent the alphabet ?

Collins is wrong 12/04/04 10:37:49 AM EST

Tovalds is right. Collins is wrong. Software innovators live under a Damocles sword of software patents applied by players alien to their market. They never requested patents for software from the European Commission because no one needs them.

Alex H. Horn 12/04/04 10:17:58 AM EST

There is little to add to Mr. Collin's assessment. However, it should be pointed out that the term "open source developers" might be a bit fuzzy or even inexact within this context - there are also open source developers employed by companies exercising an active patent policy.

Moreover, the patentability of computer-implemented inventions is also challenged by representatives of companies not creating open source software but perhaps wanting to have a free ride with regard to valuable inventions of third parties.

Guy Inchbald 12/04/04 10:14:24 AM EST

The thrust of John Collins' criticism is that, in considering the proposed EU software patent directive, Linus does not take on board that "copyright can only protect software code and not software".

This means you cannot copyright the functionality of a piece of software, only the exact code sequence (text character or binary strings).

So if I write a piece of code to do exactly what someone else's copyrighted code does, provided my source and compiled code sequences do not significantly duplicate the copyrighted ones, I am street legal.

Well, that's all very fine and (correct me if I'm wrong) I don't think Linus is upset about normalising EU-wide copyright laws. This will if anything strengthen the GPL (The copyright license agreement under which he releases Linux).

I'm quite impressed that the corporate camp have managed to find a lawyer who can't tell the difference between a copyright and a patent!

D Hamill 12/04/04 10:11:34 AM EST

Torvald's comment is legally spot on. You cannot copyright software (ie functionality) but you can copyright code (ie sequences of numbers).

The fact that this is confusing to the industry it is meant to protect suggests that the whole thing needs reviewing. (And don't get me started on whether or not software is goods or services!)